General terms and conditions
§ 1 General – Scope of application
1. Only the GTCs of proxomed apply; proxomed does not acknowledge contradictory conditions of the customer. The GTCs of proxomed also apply if proxomed implements the delivery without reservation while knowing about contradictory conditions of the customer.
2. Oral agreements or agreements reached by telephone as well as all other declarations, especially collateral agreements and amendments to the contract, require written form to become effective. This also applies to a cancellation of this clause. The same applies to any pledges, consulting and declaration of the staff of proxomed.
3. proxomed's conditions of purchase also apply to all future business with the customer and apply only to persons who, on conclusion of the contract, act in fulfilment of their commercial or independent professional role (entrepreneur) and corporate bodies under public law or a special fund under public law.
§ 2 Quotation
1. If the customer's order is to be qualified as a quotation in accordance with § 145 of the German Civil Code (BGB), proxomed can accept it within 4 weeks.
2. Unless otherwise agreed, proxomed's quotations are non-binding.
3. proxomed remains the owner of samples, quotations, drawings, images, photos and similar physical and non-physical information - including in electronic form; they may not be made available to third parties without written approval of proxomed.
§ 3 Prices – conditions of payment
1. Unless something else results from the order confirmation, proxomed's prices apply "ex works".
2. proxomed reserves the right to increase prices appropriately if cost increases, especially due to increases in the cost of materials or changes to transportation costs, occur after conclusion of the contract. Evidence of these cost increases is provided to the customer by proxomed on request.
3. On the day of the issue of the invoice, the statutory value added tax is shown separately, in addition to the prices, in the statutory amount in the invoice.
4. Unless there are other regulations based on individual contracts, the payment is to be made without any deduction to the proxomed account within 14 days following the issue of the invoice.
5. The following financing possibilities can be chosen from:
1) 30% advance payment when placing the order, residual payment on delivery within 14 days or
2) Bank guarantee of the full order amount or
3) Lease confirmation of the full order amount
6. In the cases covered under 5. 1) order of the goods takes place only after receipt of payment, in the cases under 5. 2) and 5. 3) order of the goods takes place only after receipt of the bank guarantee or lease confirmation
7. In the event of agreed due dates being passed, customary bank due date interest of 5% above the Euribor rate in accordance with § 288 BGB - however not less than 8% - becomes due. Further requirements, especially due to delay of payment, are reserved.
8. Rights to set-offs and rights of retention are in principle excluded. They exist only to the extent that the counterclaim of the customer is finally established, acknowledged or indisputable; in addition, a right of retention exists only if the counterclaims are based on the same contractual relationship.
9. In the event of cancellation of the order at the request of the customer, proxomed can – notwithstanding the possibility of claiming higher damages – demand at least 40% of the order amount for the costs incurred from the processing of the order and for lost profit.
§ 4 Delivery period and delay to delivery
1. The delivery period is based on the agreements of the contractual parties. Compliance with the delivery period by proxomed requires that all commercial and technical issues between the contractual parties be clarified and that the customer have fulfilled all the obligations incumbent upon it, such as the selection of all equipment details or the making of an advance payment. If this is not the case, the delivery period is extended accordingly. This does not apply if proxomed is responsible for the delay.
2. Compliance with the delivery deadline shall be subject to correct and punctual supply to ourselves. Impending delays shall be communicated by proxomed as soon as possible.
3. The delivery deadline has been complied with if the delivery object has left the proxomed plant by its expiry or readiness for shipment has been declared.
4. Partial deliveries are permitted as long as they are acceptable to the customer.
5. If the shipment or acceptance of the delivery object is delayed for reasons for which the customer is responsible, the costs incurred due to the delay are charged to it, beginning one month after declaration of readiness for shipment or acceptances. In the event of the agreed acceptance due date (time of delivery) being passed, customary bank due date interest of 5% above the Euribor rate - however, at least 8% per year in accordance with § 288 BGB - becomes due for the pre-financing of the order value as well as storage costs of 1% of the value of the good per month. Further requirements, especially due to delay to acceptance, are reserved.
6. If the non-compliance with the delivery period is due to force majeure, industrial action or other events outside the scope of influence of proxomed, the delivery period shall be extended accordingly. proxomed shall communicate to the customer the beginning and the end of such circumstances as soon as possible.
7. Should proxomed default and should this result in damages to the customer, the latter has the right to demand lump-sum compensation for loss occasioned by delay. The compensation amounts to 0.5% for each full week of the delay. However, it totals a maximum of 5% of the value of the part of the overall delivery that cannot be used punctually or contractually due to the delay. If, after the due date has passed, the customer sets proxomed – taking the statutory exceptional cases into account – an appropriate deadline for performance and if the deadline is not complied with, the customer has the right of withdrawal in accordance with the statutory provisions. Further liability in the event of damage caused intentionally or by gross negligence remains unaffected.
§ 5 Passing of the risk
1. The risk is passed to the customer when the delivery object has left the plant, including in the event of partial deliveries. In the event that proxomed has assumed delivery and installation, the risk is passed as soon as the equipment is installed on the customer's premises.
2. If a confirmation of acceptance or a leasing is to take place, the customer may not refuse the confirmation of acceptance or leasing if an insignificant defect exists.
3. Should the shipment or acceptances be delayed or not take place due to circumstances that are not attributable to proxomed, the risk is passed to the customer from the day of declaration of readiness for shipment or acceptance. proxomed undertakes to conclude the insurance policies demanded by the customer at the latter's expense.
§ 6 Warranty for defects
proxomed warrants for material defects and defects of title of the delivery to the exclusion of further claims
– subject to § 7 – as follows:
1. All the parts that prove to be defective due to a circumstance that existed prior to the passing of the risk are to be repaired or replaced with no defects gratuitously at proxomed's discretion. The customer's warranty rights require that it have fulfilled its duties to inspection and objection that it is subject to in accordance with § 377 of the German Commercial Code (HGB) in an orderly fashion. Any claims must be asserted to proxomed in written form as follows:
– without delay in the event of obvious errors.
– immediately after discovery - however, six months after the passing of the risk at the latest - in the event of covert errors.
2. If the purchased item contains a defect for which proxomed is responsible, proxomed has the right to correct the defect or perform a replacement delivery at its discretion. Following consultation with proxomed, the customer is to provide the necessary time and opportunity for the performance of all the repairs and replacement deliveries that proxomed deems necessary; otherwise, proxomed is free from liability for the resulting consequences.
3. Should nothing else emerge hereafter, further claims of the customer – for whatever legal reasons – are excluded. For this reason, proxomed is not liable for damages that have not arisen on the delivery object itself; in particular, it is not liable for lost profit or other financial losses of the customer.
4. The above exemption from liability does not apply if the cause of the damage is based on intentional actions or gross negligence on proxomed's part.
5. If proxomed negligibly violates an essential contractual obligation, liability for material and personal damages is limited to the payment of damages of the proxomed product liability insurance. proxomed is happy to provide the customer insight into the policy on request.
6. The warranty period lasts 12 months, calculated from the passing of the risk. This period is a limitation period and also applies to claims to damages for consequential harm caused by a defect, assuming no claims in tort are asserted. The performance of repairs on the purchased item has no impact on the duration of the warranty.
7. a) Medical devices: The warranty exists only if a functional test of the new or repaired object in accordance with the provisions of the Medical Devices Operator Ordinance (MPBetreibV) has been performed by proxomed or a person authorised to do so who acts in consultation with proxomed and the person mandated by the operator has received instruction on the proper handling, use and the operation of the purchased object as well as the permitted connection with other medical devices, objects and accessories in accordance with MPBetreibV. Further, the warranty exists only if the repaired object is operated and used only by persons who possess the education or knowledge and experience in accordance with MPBetreibV that is necessary for this or if maintenance and repair of the repaired object are performed by competent persons, companies or institutions in accordance with MPBetreibV with adherence to MPBetreibV and the manufacturer's instructions.
b) Fitness products: The warranty exists only if a functional test of the new or repaired object has been performed by proxomed or a person authorised to do so who acts in consultation with proxomed and the person mandated by the operator has received instruction on the proper handling, use and the operation of the purchased object as well as the permitted connection with other devices, objects and accessories. Further, the warranty exists only if the repaired object is operated and used only by persons who possess the education or knowledge and experience that is necessary for this or if maintenance and repair of the repaired object is performed by competent persons, companies or institutions with adherence to the manufacturer's instructions.
8. No warranty is assumed especially for usual wear and tear, erroneous or negligible treatment, inappropriate maintenance or unsuitable equipment. Should the customer or a third party perform repairs improperly, there is no liability on the part of the contractor for the resulting consequences. The same applies to changes performed on the delivered object without the prior approval of the contractor.
9. The buyer must provide evidence of the qualifying conditions for the warranty for defects, especially for the defect itself, for the time of the defect and for the punctuality of the notification of defects.
§ 7 Total liability
1. Liability of proxomed for damages – whatever the legal reason, especially due to violations of duties from debt relationships or in tort, especially for claims from the producer's liability in accordance with § 823 BGB – is excluded, unless claims are allowed in these conditions or are expressly allowed by proxomed.
2. The regulation in accordance with paragraph 1 does not apply to claims in accordance with §§ 1, 4 Product Liability Act, in the event of intentional actions and gross negligence. The same applies in the event of initial inability to perform or impossibility of performance attributable to us.
3. If liability of proxomed is excluded or limited, this also applies to the personal liability of the employees, workers, personnel, representatives and vicarious agents of proxomed.
4. The limitation of the right of action between the customer and proxomed is based on the limitation period applicable to material defects in accordance with § 6 paragraph 6. This does not apply to claims in tort that are not derived from the deficiency of the delivered object or the service.
§ 8 Securing reservation of title
1. proxomed reserves the title to its deliveries until receipt of all the liabilities of the customer towards proxomed that have already come into existence and will come into existence in future at the time of conclusion of the relevant contract. In the event of behaviour contrary to the terms of the contract on the part of the customer, especially in the event of payment delay, proxomed has the right to reclaim the purchased object. The reclaiming of the purchased object by proxomed does not involve a withdrawal from the contract, unless this has been expressly declared in writing by proxomed. After reclaiming the purchased object, proxomed is authorised to use it. The proceeds from use are to be credited against the customer's liabilities, minus appropriate utilisation costs.
2. In the event of garnishment or other interventions by third parties, the customer must inform proxomed in writing without delay so that proxomed can take legal action in accordance with § 771 of the Code of Civil Procedure (ZPO). If the third party is unable to reimburse proxomed for the judicial and extra-judicial costs of such legal action, the customer is liable for the financial loss incurred by proxomed.
3. The customer has the right to resell the purchased object in the ordinary course of business; however, it now relinquishes to proxomed all the receivables in the final invoice amount (including VAT) accruing to it from the resale towards its customer or third parties, doing so regardless of whether the purchased object was resold without or after processing. The customer remains authorised to receive this receivable after the relinquishment as well, assuming it is not in default and, in particular, has not applied for the opening of an insolvency procedure or payment is suspended. However, if the latter is the case, proxomed can demand that the customer reveal to proxomed the relinquished receivables and the parties liable for them and provide all the information necessary for collection.
4. If the purchased object is processed with objects that do not belong to proxomed, proxomed acquires co-ownership of the new object proportionally to the value of the purchased object compared to that of the other processing objects at the time of processing. The same applies to the object produced through processing as to the purchased object delivered under reserve.
5. proxomed undertakes to release the securities due to it at the request of the customer insofar as the value of its securities exceeds the value of the receivables to be secured by more than 20%; proxomed reserves the right to select the securities to be released.
§ 9 Disposal of equipment
1. With the conclusion of the purchase contract, it is agreed that business customers perform disposal of equipment themselves within the meaning of EU guideline 2002/96/EU on used electrical and electronic equipment.
§ 10 Applicable law, court of jurisdiction
1. Exclusively German law applies to all legal relations between proxomed and the customer.
2. The court of jurisdiction is the court responsible for the domicile of proxomed. However, proxomed has the right to take legal action at the customer's headquarters.
For software (computer programs) of proxomed® Medizintechnik GmbH
§ 1 Application
1. The software may be used only by the customer and its mandatees. It may be used only on the device for which it is intended.
§ 2 Right of use
1. proxomed grants the customer a non-exclusive and non-transferable right to use the program. The original version of the program is provided. The customer may duplicate, revise or compile the software or convert it from object code to source code only in the legally permitted scope (sections 69 a et seqq. of the German Copyright Act (UrhG)). The customer undertakes not to remove manufacturer information – especially copyright notes – or amend it without the prior approval of proxomed.
§ 3 Reservation of title
1. proxomed - or, if applicable, its presuppliers or the program author - retains title, copyright and the right of sale to the program and the program concepts, including documentation. The amount charged for the software is exclusively a compensation fee. Transfer of the program, including documentation, against payment or free of charge without the written approval of proxomed is prohibited.
§ 4 Liability for defects
1. Since DP programs cannot be produced without errors, even using the latest technology, proxomed assumes no warranty that the features and functions named in the performance description will work flawlessly. These features and functions are also not warranted. Rather, they represent a product description produced to the best of our knowledge and belief. Supplementary performance is implemented by proxomed's choice by means of repair or replacement delivery. Should repairs or flawless replacement delivery not lead to success, the customer can demand a reduction of the compensation fee or rescission of the contract. If the customer is a dealer, liability for consequential harm caused by a defect is excluded in the event that warranted features are not present, unless proxomed or its vicarious agents and/or assistants are guilty of intentional actions or gross negligence leading to the harm.
2. a) Medical devices: In the event of malfunctions, the warranty does not apply if these malfunctions are due to the fact that the customer does not use and operate the programs in accordance with the corresponding information in the performance description and the provisions of MPBetreibV. This is the case particularly if a functional test of the purchased object in accordance with the provisions of the Medical Devices Operator Ordinance (MPBetreibV) has not been performed by proxomed or a person authorised to do so who acts in consultation with proxomed at the place of operation or the person mandated by the operator has not received instruction on the proper handling, use and the operation of the purchased object as well as the permitted connection with other medical devices, objects or accessories in accordance with MPBetreibV. The warranty also does not apply if operation and use are performed not only by persons who possess the education or knowledge and experience in accordance with MPBetreibV that is necessary for this or if maintenance and repair of the purchased object are not performed by competent persons, companies or institutions in accordance with MPBetreibV with adherence to MPBetreibV and the manufacturer's instructions.
b) Fitness products: In the event of malfunctions, the warranty does not apply if these malfunctions are due to the fact that the customer does not use and operate the programs in accordance with the corresponding information in the performance description and the provisions of the manufacturer. This is the case particularly if a functional test of the purchased object has not been performed by proxomed or a person authorised to do so who acts in consultation with proxomed at the place of operation or the persons mandated by the operator have not received instruction on the proper handling, use and the operation of the purchased object as well as the permitted connection with other medical devices, objects or accessories. The warranty also does not apply if operation and use are performed not only by persons who possess the education or knowledge and experience that is necessary for this or if maintenance and repair of the purchased object are not performed by competent persons, companies or institutions with adherence to the manufacturer's instructions.
§ 5 Final provisions
Assuming the special conditions for software do not contain any special regulations, the conditions of delivery and payment of proxomed apply additionally to the transfer of software programs.
As of: 1 July 2010